COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

LISA THOMASINE WALLER 

v. Record No. 0077-95-2 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA MARCH 12, 1996 

FROM THE CIRCUIT COURT OF LANCASTER COUNTY 

Dixon L. Foster, Judge Designate 

 William R. Curdts (Dunton, Simmons, & Dunton, 

on briefs), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from her conviction for distribution of cocaine, 

Lisa Thomasine Waller contends that the trial court erred (1) in 

refusing to allow her to cross-examine a prosecution witness 

concerning a prior inconsistent statement, and (2) in refusing to 

admit into evidence the transcript of a prosecution witness's 

inconsistent statements at a previous trial. We agree and 

reverse the judgment of the trial court. 

 On July 17, 1993, at 8:00 p.m., Michael Conway, a volunteer 

working for the Lancaster County drug task force, met with Deputy 

United States Marshal Larry Clarke to purchase drugs. The two 

men stopped outside a house in a residential area off Wiggins 

Road. They saw Hilton Laws sitting on the side of the road and 

Waller's car in the driveway. Conway asked Laws where they could 

buy some drugs. Laws went to Waller. Waller then walked over to 
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Conway and asked what she could do for them. Conway said he 

wanted a fifty dollar rock of cocaine. Waller walked back to her 

car and spoke with a man, known as "The Undertaker," who was 

sitting in the passenger seat. When she returned, she handed 

Conway a rock of cocaine and he gave her fifty dollars. 

 At trial, Waller admitted she was present at the time of the 

sale, but she testified that someone else sold the cocaine to 

Conway. 

 I. 

 Waller sought to cross-examine Conway concerning his 

testimony in a prior trial "that the only people that he bought 

from during the task force operation were black males." Defense 

counsel noted that Waller was not a black male. The trial court 

ruled that evidence of Conway's prior testimony was inadmissible 

and denied the cross-examination. This was error. 

 If a witness gives testimony that is inconsistent with 

a prior statement, . . . opposing counsel may crossexamine the witness as to the inconsistency. In 

addition, all inconsistent portions of that prior . . . 

statement are admissible for impeachment purposes. 

Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98 

(1992) (citations omitted). Conway's alleged testimony on the 

earlier occasion that he had bought drugs only from black males 

was inconsistent with his testimony at trial that he had bought 

cocaine from Waller, who was not a black male. Waller was 

entitled to cross-examine him on this subject. 
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 II. 

 On cross-examination, counsel for Waller asked Agent Clarke: 

 Q. You had to make people believe that you were a user of 

cocaine in order to get them to sell it to you; 

 is that right? 

 A. Yes, sir. 

 Q. Did you ever find yourself in the company of other 

people using cocaine during the course of your investigation? 

 A. Yes, sir. 

Waller's counsel then sought to impeach Clarke's testimony by 

proof that at Waller's previous trial Clarke had testified that 

he had not been in the presence of people who were actually using 

cocaine. Defense counsel read to Clarke the following excerpt 

from the transcript of that previous testimony: 

 Q. In fact, you were playing the role of someone who is a 

drug user, someone in search of drugs; is that right? 

 A. Yes, sir. 

 Q. And your safety depended on that. 

 A. Yes, sir. 

 Q. Did you ever find yourself in a position where, 

in order to maintain your identity, or your persona, 

you are in the company of people that were actually 

using cocaine. 

 A. Were I in the presence of people actually using 

cocaine? 

 Not primarily in my presence, but suspected 

areas where such that they may have been 

inside of a house while I am outside. 

 But I have never been right there while 

cocaine was being used. 

Asked whether he recalled that testimony, Clarke replied, "I 
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don't recall, but I tried to answer the question to the best of 

my recollection in a truthful manner on that day as well as 

today, but I don't recall using those exact words." Defense 

counsel then sought to introduce the transcript into evidence. 

The trial court ruled that counsel might cross-examine Clarke on 

his prior testimony, but refused to admit the transcript into 

evidence. 

 The Commonwealth contends, as a threshold matter, that the 

inconsistency between Clarke's testimony at Waller's trial and 

his testimony on the prior occasion was collateral and immaterial 

to any issue on trial in Waller's case, and thus could not be 

used by Waller to impeach Clarke. A witness may be impeached on 

cross-examination by proof that he has, on a prior occasion, made 

a statement that is inconsistent with any testimony given by him 

on direct examination. However, if the subject matter is raised 

for the first time on cross-examination and is collateral to the 

issues on trial, it cannot be the basis for impeachment by proof 

of a prior inconsistent statement. See Baltimore, C. & A. Ry. 

Co. v. Hudgins, 116 Va. 27, 31-32, 81 S.E. 48, 49 (1914); Simpson 

v. Commonwealth, 13 Va. App. 604, 606-07, 414 S.E.2d 407, 409 

(1992). 

 The subject matter of Clarke's inconsistent statements was 

raised for the first time on cross-examination. However, that 

subject matter was not collateral to the issues on trial. "The 

test as to whether a matter is material or collateral, in the 
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matter of impeachment of a witness, is whether or not the crossexamining party would be entitled to prove it in support of his 

case." Maynard v. Commonwealth, 11 Va. App. 437, 445, 399 S.E.2d 

635, 640 (1990) (en banc) (citation omitted). The inconsistent 

statements related to Clarke's conduct and the conduct of his 

companions during the task force operation, specifically with 

respect to drug dealings, and to Clarke's ability to recall that 

conduct. This subject matter bore directly on the validity and 

accuracy of Clarke's assertions against Waller and was an area 

that she was entitled to explore in her defense. Therefore, 

these statements were proper material for impeachment. 

 Waller contends that the trial court erred in refusing to 

receive the relevant portion of the transcript into evidence as 

proof of the prior inconsistent statement. Citing Smith v. 

Commonwealth, 15 Va. App. 507, 425 S.E.2d 95 (1992), and Hall v. 

Commonwealth, 233 Va. 369, 355 S.E.2d 591 (1987), the 

Commonwealth argues that because the statement was read into 

evidence, its proof was thereby accomplished, that admission of 

the written transcript thereby became unnecessary, and that the 

trial court did not abuse its discretion in rejecting the 

transcript. We disagree. 

 It is fundamental to the right of cross-examination 

that a witness who is not a party to the case on trial 

may be impeached by prior statements made by the 

witness which are inconsistent with his present 

testimony, provided a foundation is first laid by 

calling his attention to the statement and then 

questioning him about it before it is introduced in 

evidence. 
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Hall, 233 Va. at 374, 355 S.E.2d at 594. 

 In Hall, a witness's prior inconsistent statement was read 

to him. The accused then sought a cautionary instruction, 

informing the jury that the prior inconsistent statement could be 

considered only for impeachment purposes and not as proof of the 

substance of the statement. The trial court refused to give the 

instruction, because the statement itself had not been put into 

evidence but merely had been recited on cross-examination. 

Holding that the denial of the cautionary instruction was error, 

the Supreme Court said, "[t]he effect of [the recitation] on the 

jury was the same as if the statement had been formally 

introduced and the court's refusal to admit the statement in 

evidence is immaterial." Id. at 375, 355 S.E.2d at 595. This 

ruling held merely that the recitation of the prior inconsistent 

statement was proof sufficient to render erroneous the denial of 

a requested cautionary instruction. Hall did not approve a 

refusal to accept the statement, if tendered, into evidence. 

 In Smith, defense counsel handed a prosecution witness a 

transcript of the witness's inconsistent statement given on a 

prior occasion and had the witness read the statement aloud. 

Sustaining the Commonwealth's objection to admission of the 

transcript, the trial court summarized the inconsistency as 

follows: "[Bradby] said he didn't implicate himself at all on 

the date of the arrest. Now he is implicating himself. The jury 

has that and the jury considers that and the jury makes the 
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decision." Relying on Hall, we held: 

 [T]he quoted passage above shows that the statement was 

read into evidence, even if not admitted in written 

form. "The effect of that procedure on the jury was 

the same as if the statement had been formally 

introduced, and the court's refusal to admit the 

statement in evidence is immaterial." 

* * * * * * * 

 The record shows the trial court determined that the 

jury had heard the relevant portions of the statement 

as it related to impeachment. Once the jury has heard 

the relevant portions of the prior inconsistent 

statement during cross-examination, whether the written 

statement itself is admitted into evidence is "a 

distinction without a difference." Because the trial 

court determined that admission of the written 

statement would have added nothing not already in the 

record, we cannot conclude that the trial court abused 

its discretion in refusing to admit the transcript. 

Smith, 15 Va. App. at 512-13, 425 S.E.2d at 98-99 (citations 

omitted). 

 This case is distinguishable from Smith. Where a proper 

foundation has been laid, challenging a witness's credibility on 

the basis of his having made a prior inconsistent statement, the 

prior inconsistent statement itself becomes admissible for 

impeachment purposes. See Smith, 15 Va. App. at 511, 425 S.E.2d 

at 98. In Smith, the impeached witness himself read the prior 

inconsistent statement into evidence. The statement was thereby 

incorporated into the body of proof laid before the jury. In 

this case, the reading of the statement by counsel was a mere 

assertion of counsel. It did not rise to the level of testimony 

and, thus, was not proof of the statement. By rejecting the 

relevant portion of the transcript, the trial court denied Waller 
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the opportunity to prove the inconsistent statement upon which 

her effort to impeach Clarke rested. 
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 In attempting to impeach Clarke, Waller proceeded properly 

 to frame the question by reading the statement from 

 a transcript of a prior proceeding. If the witness 

denies or is unable to recall having made the 

statement, counsel must then prove the statement 

actually was made. 

 It is one thing, however, to say that counsel may 

read a witness' prior statement from a transcript in 

framing a question and quite a different matter to say 

that the mere reading constitutes proof the statement 

actually was made. Once the witness denies or is 

unable to recall having made the prior inconsistent 

statement, the proper procedure . . . is to use another 

witness to prove the first witness had testified as 

reported in the transcript.1

Patterson v. Commonwealth, 222 Va. 612, 616-17, 283 S.E.2d 190, 

193 (1981). 

 III. 

 The Commonwealth contends that any error in the trial 

court's rulings was harmless. We do not agree. Although the 

record contains abundant evidence of Waller's guilt, the 

sufficiency of that proof is dependent upon Conway's and Clarke's 

credibility. Had Waller succeeded in impeaching Conway or Clarke 

and in raising a reservation as to the credibility of either, she 

might well have won an acquittal. 

 The judgment of the trial court is reversed and this case is 

remanded for further proceedings, if the Commonwealth be so 

advised. 

 

 1This appeal raises no question as to the authenticity of 

the transcript. Furthermore, authentication by a witness is no 

longer required. The transcript, if properly certified by the 

court reporter, is self-authenticating. See Code § 8.01-420.3. 
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 Reversed and remanded.